Wright v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle
[2023] NSWPIC 301
•27 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Wright v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2023] NSWPIC 301 |
| APPLICANT: | Tammy Wright |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle |
| Member: | Karen Garner |
| DATE OF DECISION: | 27 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); application for lump sum permanent impairment compensation pursuant to section 66 of the 1987 Act; applicant had accepted injury to right knee on 29 April 2008 and accepted injury to left knee and left shoulder on 5 June 2018; whether the injury on 5 June 2018 results from the injury on 29 April 2008 such that the provisions of section 322 of the Workplace Injury Management and Workers Compensation Act 1998 are engaged, so that the respective impairments can be assessed together rather than separately for the purposes of assessment of whole person impairment pursuant to sections 65 and 66 of the 1987 Act; Held – the applicant sustained a right knee injury on 29 April 2009 in the course of her employment with the respondent and to which the employment was a substantial contributing factor; the applicant sustained consequential conditions to her left knee and left shoulder on 5 June 2018 which resulted from the right knee which the applicant sustained on 29 April 2008; section 322 of the 1987 Act was engaged. |
| determinations made: | |
The Commission determines:
The applicant sustained a right knee injury on 29 April 2008 in the course of her employment with the respondent and to which the employment was a substantial contributing factor.
The applicant sustained consequential conditions to her left knee and left shoulder on
5 June 2018 which resulted from the right knee injury which the applicant sustained on
29 April 2008.
The Commission orders:
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 29 April 2008 (with consequential conditions on 5 June 2018).
Body parts: right lower extremity (knee);
left lower extremity (knee);
left upper extremity (shoulder), and
TEMSKI/scarring
Method: whole person impairment.
The materials to be referred to the Medical Assessor are to include:
(a) the Application to Resolve a Dispute and attachments, and
(b) the Reply to Application to Resolve a Dispute and attachments.
STATEMENT OF REASONS
BACKGROUND
Tammy Wright (the applicant) is 54 years old and was employed by Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (the respondent) as a teacher.
The respondent accepts that the applicant sustained injuries in the course of her employment with the respondent and to which the employment was a substantial contributing factor:
(a) on 29 April 2008, to her right knee, and
(b) on 5 June 2018, to her left knee and left shoulder.
By letters dated 12 November 2021, the applicant made two separate claims for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act):
(a) in respect of a 28% whole person impairment (WPI) arising out of injuries sustained on 29 April 2008,[1] and
(b) in respect of a 29% WPI arising out of injuries sustained on 5 June 2018.[2]
[1] ARD, page 9; Reply, page 41.
[2] ARD, page 10; Reply, page 41.
Subsequently, by letter dated 4 November 2022,[3] the applicant’s solicitors advised the respondent that:
“... all of the Applicant’s injuries are caused by or consequential from the first injury and as such the Applicant will be arguing that they should be aggregated to the first injury.
In the circumstances the Applicant will have a 49% WPI and that [sic] a claim will be made in the alternative to that effect.”
[3] ARD, page 11.
On 20 February 2023, the applicant initiated proceedings in the Personal Injury Commission (Commission) by way of an Application to Resolve a Dispute (ARD), which stated that the applicant claimed permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of a 49% WPI. The ARD pleaded one date of injury, being 29 April 2008, and stated that the systems claimed were: right lower extremity, left lower extremity, left upper extremity and TEMSKI/scarring. The ARD described the injury as follows:
“On her way home from work the Applicant alighting from a bus and fell in a pot hole sustaining injury to her right knee together with consequential injuries on 3 June 2008, 3 April 2009, 3 April 2015, 5 June 2018 and 3 August 2018 to her left knee and left shoulder.”
On 14 March 2023, the respondent lodged a Reply to ARD (Reply), which stated:
“1. The respondent disputes that the applicant is entitled to aggregate the permanent impairment resulting from injury to the right knee on 29 April 2008 with impairment resulting from injury to the left knee and left shoulder resulting from injury on 5 June 2018. The respondent relies upon Section 322 WIM Act 1998.
2. The respondent also notes that the claims for lump sum compensation under Section 66 WCA 1987 were made by way of letters (x 2) dated 12 November 2021. Those claims related only to injury suffered on 29 April 2008 and 5 June 2018. The respondent submits that they are the only injuries capable of referral to a medical assessor pursuant to the terms of the Workplace Injury Management and Workers Compensation Act 1998.”
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a preliminary conference on 28 March 2023, the applicant was represented by Mr Gregory McKean of Firths – The Compensation Lawyers and the respondent was represented by
Mr Thomas Murray of Integroe Partners Lawyers.Following submissions by the respective lawyers, the Commission issued directions on
28 March 2023, which stated:“The Commission notes:
(i)The applicant relies only on the injuries on:
a.29 April 2008, and
b.5 June 2018.
(ii)The respondent accepts the injuries on:
a.29 April 2008, and
b.5 June 2018.
(iii)The matters in dispute are as follows:
a.whether the injury on 5 June 2018 is consequential to, and can be aggregated with, the injury on 29 April 2008, and
b.the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation... in respect of injuries on 29 April 2008 and 5 June 2018...”
At a hearing on 3 May 2023, the applicant was represented by Mr Ross Goodridge, instructed by Ms Jessica Seymour of Firths – The Compensation Lawyers, with the applicant. The respondent was represented by Mr Lachlan Robison, instructed by Ms Rebecca Gibson of Integroe Partners Lawyers, with Ms Aleksandra Gagic of Catholic Church Insurances Limited (the insurer).
I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
The respondent accepts:
(a) injury to the applicant’s right knee on 29 April 2008, and
(b) injury to the applicant’s left knee and left shoulder on 5 June 2018.
The parties agree that those injuries should be remitted to the President for referral to a Medical Assessor for assessment of WPI pursuant to ss 65 and 66 of the 1987 Act. The issue for determination concerns the nature and extent of such referral.
The respondent disputes that there is any relevant causal connection between those injuries and, on that basis, disputes that the respective impairments can be assessed together pursuant to s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), rather than assessed separately, for the purposes of assessment of WPI by a Medical Assessor.
The following issues remain in dispute:
(a) whether the injury on 5 June 2018 results from the injury on 29 April 2008 such that the provisions of s 322 of the 1998 Act are engaged, and
(b) the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation in respect of injuries on 29 April 2008 and
5 June 2018.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD with attached documents, and
(b) Reply with attached documents.
Oral evidence
No party applied to adduce oral evidence or cross-examined any witness.
Applicant’s statement
The applicant gave evidence by way of a written statement dated 18 November 2022.
The applicant stated that she injured her right knee on 29 April 2008 in the course of her employment with the respondent. The injury occurred when she fell into a pothole, twisting her right knee, as she was stepping off a bus. The applicant stated that, following that injury, she had ongoing problems with her right knee, which included pain, instability and giving way. I observe that this is not in issue.
The applicant stated that on 3 June 2008, she sustained further injury to her right knee, as well as to her right wrist and tailbone when the ongoing instability in her right knee caused her to fall when she slipped on a driveway during a work home visit. The applicant had ongoing problems with her right wrist and tailbone following that fall and she continued to have ongoing problems with her right knee.
The applicant stated that on 25 June 2008, she underwent surgical arthroscopy to the right knee performed by Dr Hassan at the Berkeley Private Hospital (which had been considered prior to the incident on 3 June 2008). Following the surgery, she eventually returned to her pre-injury duties however she continued to experience right knee pain, discomfort, locking, catching and giving way.
The applicant stated that on 30 April 2009, she sustained a further aggravation to her right knee condition when her knee twisted and gave way as she went to rise from a chair at work, caused by the ongoing right knee instability. Subsequent to that injury, Dr Hassan treated the applicant’s knee conservatively, including with steroid injections.
The applicant stated that on 5 March 2010, she sustained injury to her left knee when she slipped and fell at a school carnival due to ongoing instability of her right knee.
The applicant stated that on 22 September 2010, she underwent bilateral knee arthroscopic procedures performed by Dr Hassan at Berkley Vale Private Hospital due to the ongoing problems with her right knee and the new injury to her left knee.
The applicant stated that she continued to experience significant problems with her right knee and, since March 2010, mild left knee discomfort.
The applicant stated that on 6 January 2014, she underwent a further right knee arthroscopy procedure performed by Dr Hassan at Berkeley Vale Private Hospital, which resulted in a poor outcome.
The applicant stated that on 25 August 2014, she underwent a total right knee replacement procedure undertaken by Dr Hassan.
The applicant stated that, following that surgery, she continued to have significant ongoing pain and problems with her right knee and mild intermittent left knee discomfort and she was required to use one or two crutches to mobilise on an ongoing basis.
The applicant stated that on 30 April 2014, her right knee condition worsened when she fell after her foot slipped and her knee gave way.
The applicant stated that on 5 June 2018, she sustained a significant injury to her left knee and left shoulder when she lost her balance and fell as she stepped off a bus on a school excursion and the crutch that she was using slipped on a slight embankment. She stated that she was using the crutch because of her ongoing right knee problems.
The applicant stated that subsequently, on an unspecified date prior to seeing Dr Verheul in September 2018, she sustained a further injury at work to her right knee when she slipped on strawberries and fell because of ongoing instability of her right knee.
The applicant stated that on 10 October 2019, she underwent a total left knee replacement, performed by Dr Verheul at Lake Macquarie Private Hospital.
The applicant stated that her knee surgeries did not have a good outcome and she has continued to have substantial ongoing pain, stiffness, discomfort and problems with both her right knee and her left knee. She also has ongoing, pain, discomfort and stiffness in her left shoulder.
The applicant stated that she has no work capacity due to her injuries and she is in receipt of weekly workers compensation payments.
The applicant believes that the injuries and aggravations which she sustained have ultimately all been caused by the original injury to her right knee on 29 April 2008 and the subsequent consequential instability and giving way of that knee on a number of different occasions.
I note that the applicant’s statement makes numerous references to “Dr Hassan”. It appears that is a typographical error and that the applicant’s statement is intended to refer to Dr B James Hasn, whose reports are in evidence.
Treating medical evidence
The treating medical evidence includes numerous clinical records and reports of treating practitioners dated between June 2008 and December 2020,[4] particularly Berkeley Private Hospital, Dr B James Hasn (orthopaedic surgeon) Dr Martyn Hood (general practitioner),
Dr Julianne Millar (general practitioner), Dr Kristina Love (general practitioner), Adam McKee (physiotherapist) and Dr Richard Verheul (orthopaedic surgeon).[4] ARD, pages 12 – 91.
It is convenient to describe the treating evidence chronologically.
Dr Hasn, orthopaedic surgeon, treated the applicant between June 2008 and 2017.
Dr Hasn performed a right knee arthroscopy on 25 June 2008.[5]
[5] ARD, page 13.
A referral note from Dr Hood to Dr Hasn dated 5 May 2009 recorded that the applicant recently twisted her right knee when rising from a chair and her knee gave way and that she had also fallen down stairs. He noted that the applicant has a “swollen painful right knee”.[6]
[6] ARD, page 16.
On 14 May 2009, Dr Hasn replied to Dr Hood:[7]
“... [the applicant], who was seen on 14/05/09, which is just under a year following arthroscopy of her right knee. Although there had been some improvement, the knee had certainly not been feeling normal but her knee dramatically worsened following two incidents, most recently in her work as a Teacher... The first occurred on 30th April at a meeting when she tired [sic] to rise from her chair and turned to her left and felt a crack in the knee, which caused her to collapse. There was immediate swelling and she required help to reach her car. She rested over the weekend but had a further episodes of giving way on stairs at work a few days later. At this stage, she is uncomfortable walking without the assistance of a stick and finds walking difficult even with the stick. She is unable to get around a shopping centre without having a rest or holding onto a trolley and is requiring regular analgesics. Her pain disturbs her nocturnally. She has been using hot and cold packs on her knee and a brace from treatment she had last year...”
[7] ARD, page 17.
On 28 May 2009, Dr Hasn noted that an MRI investigation performed on 20 May 2009 “shows no new meniscal tear and more importantly, no ligament damage. There are areas of full thickness articular loss on the medial femoral condyle, which have increased since arthroscopy a year ago when she was found to have unstable Grade 11 flaps that were chondroplastied to a stable base”.[8] The MRI demonstrated progression of the applicant’s right knee condition but no apparent further frank injury.
[8] ARD, page 18.
On 20 July 2010, Dr Hasn reported that he reviewed the applicant on 20 July 2010, which was two years following arthroscopy of her right knee and several months following a course of Synvisc injections from which she had approximately three months of relief. Dr Hasn stated that:[9]
“Since early this year however, she has been experiencing gradually increasing pain initially in her right knee and now her left knee is becoming increasingly problematic.
Clinically, primarily the medial compartments are irritable and quite tender to examination and there are effusions in both knees. Range of motion is restricted in both knees at this stage due to pain.
X-rays show mild medial compartment narrowing, particularly on the right side.”
[9] ARD, page 23.
On 8 September 2010, Dr Hasn reported that “both knees are still causing significant discomfort and there has been a worsening of her left knee to the point where she is now on crutches”.[10] He recommended repeat arthroscopy of the right knee and an arthroscopy of the left knee, which had not been previously undertaken.
[10] ARD, page 24.
On 22 September 2010, Dr Hasn performed arthroscopy of the applicant’s left and right knees.[11]
[11] ARD, page 25.
On 10 November 2010, Dr Hasn reported that, following the bilateral arthroscopy, the applicant was “still having difficulty on stairs” although her overall improvement allowed her to consider a return to duties a few hours at a time.[12]
[12] ARD, page 28.
On 25 March 2013, Dr Hood again referred the applicant to Dr Hasn for review of her “bilateral knee pain and swelling”.[13]
[13] ARD, page 29.
On 15 May 2013, Dr Hasn reported that the applicant’s “knees are giving her increasing problems, which are quite significant as they most trouble her on stairs”. He recommended further arthroscopic surgery to both knees.[14]
[14] ARD, page 30.
On 14 June 2013, Dr Hasn performed bilateral knee arthroscopy.[15]
[15] ARD, page 31.
On 23 July 2013, Dr Hasn reported that the applicant’s “right knee is giving her more problems in terms of feelings of instability and giving way”.[16]
[16] ARD, page 33.
On 24 September 2013 and again on 10 December 2013, Dr Hasn reported that the applicant’s “left knee is progressing reasonably well but her right knee continues to give problems and if anything is not better since the time of arthroscopy”.[17]
[17] ARD, pages 34, 35.
On 14 January 2014, Dr Hasn performed right knee arthroscopy.[18]
[18] ARD, page 36.
On 19 March 2014, Dr Hasn reported that the recent surgery of the right knee was not getting a good response.[19] Dr Hasn continued to report ongoing problems with the applicant’s right knee on 27 May 2014[20] and on 5 June 2014.[21]
[19] ARD, page 38.
[20] ARD, page 39.
[21] ARD, page 41.
On 24 June 2014, Dr Hasn reported that the applicant’s knee “has become increasingly problematic and giving way on her causing collapse. This leaves us with little choice but to proceed with right knee replacement”.[22]
[22] ARD, page 42.
On 25 August 2014, Dr Hasn performed a right total knee replacement surgery.[23]
[23] ARD, pages 43, 44.
On 10 February 2015, Adam McKee, physiotherapist, reported that the applicant had pain and problems with her right knee.[24]
[24] ARD, page 45.
On 26 February 2015, Dr Hasn reported that the applicant had post-operative pain in her right knee.[25]
[25] ARD, page 47.
On 13 May 2015, a further referral to Dr Hasn noted that the applicant had slipped at work two weeks ago and twisted her knee, resulting in an increase in pain.[26]
[26] ARD, page 48.
On 29 June 2017, Dr Hasn reported that CT scan shows no evidence of periprosthetic lucency of the applicant’s right knee. He did not consider that further surgery was indicated.[27]
[27] ARD, page 50.
On 10 September 2018, Dr Kristina Love referred the applicant to Dr Richard Verheul, orthopaedic surgeon, for an opinion and management regarding her left knee.[28] The referral noted that the applicant “re-injured her right knee at school on 3rd August 2018 where she slipped on some strawberries and twisted the knee”. Dr Love stated that the applicant “is now using a 4 wheeled walker as both knees are painful”.
[28] ARD, pages 51, 53.
On 26 September 2018, Dr Verheul recorded the following history in relation to the applicant:[29]
“She is a 50 year old lady with problems referable to both her knees. This all goes back to original work place injuries in 2008 and 2009 and subsequent arthroscopies. She went through all the further non surgical treatments for the right knee but ultimately came to total knee replacement surgery with Jim Hasn in 2014. The knee was functioning reasonably up until six months ago, when she had a fall in the kitchen and a further fall coming off the bus four months ago. This has certainly exacerbated the symptoms relating to that right knee.
...
In regard to the left knee, it once again goes back to the work place injuries in 2008 and 2009 and she has had an arthroscopy on it...
I do believe that [the applicant] would not be in her current situation if it were not for, in particular, her work place injuries in 2008 and 2009 and that is has [sic] been a substantial contributing factor to the development of arthritis in her left knee...”
[29] ARD, page 55.
On 14 May 2019, Dr Verheul reported that an X-ray demonstrated severe osteoarthritis of the applicant’s contralateral knee. Dr Verheul stated:
“We do know that simply favouring the leg does not precipitate osteoarthritis, but long term altered antalgic gaits do.
As such, I am confident that the problems relating to her left knee are a direct result of her right knee problems.”
On 10 October 2019, Dr Verheul performed left total knee replacement surgery on the applicant.[30]
[30] ARD, page 65.
The treating medical evidence also includes reports of numerous medical investigations of the right knee and the left knee undertaken between June 2008 and December 2020.[31]
Independent medical evidence
[31] ARD, pages 92 – 113.
Dr Uthum Dias, occupational physician
Dr Dias provided an independent medical opinion, qualified by the applicant.
In a report dated 17 September 2021,[32] Dr Dias recorded a history which included that the applicant experienced mild and intermittent aches and pains in her right knee in 2007 which were investigated but for which she received no treatment. Dr Dias recorded that the applicant could not recall any previous symptoms of left knee pain, prior to the first subject workplace injury of 29 April 2008. Dr Dias recorded the applicant’s right knee injury on
29 April 2008. He noted “another injury” on 3 June 2008 “to her right knee due to instability in her right knee stemming from the initial incident”. He recorded that on 30 April 2009 the applicant’s right knee twisted and gave way when she was getting out of a chair at work, which was investigated and treated. He recorded that on 5 March 2010 the applicant sustained a twisting injury to her left knee at work and on 22 September 2010, the applicant underwent bilateral knee arthroscopic procedures. He noted that the applicant “continued to suffer with ongoing severe right knee pain and discomfort, and mild left knee pain and discomfort over the next three years” and she had a repeat right knee arthroscopic procedure on 6 January 2014 and subsequently a right total knee replacement procedure. He stated that following the applicant’s right total knee replacement procedure, she continued to suffer with ongoing severe right knee pain, stiffness and discomfort. He noted a further work-related right knee injury on 30 April 2015 “due to right knee instability”. He noted that the applicant “recalls that she had essentially been dependent on using at least one crutch to mobilise, after he[33]r right total knee replacement procedure of 25th August 2014”. Dr Dias recorded that “During this time period, [the applicant] did suffer from mild ongoing left knee pain which would intermittently flare up. She recalls flare ups of left knee pain in December 2016 and December 2017. However her right knee was far more symptomatic between 2014 and June 2018”.[32] ARD, page 70.
[33] ARD, pages 75 – 77.
Dr Dias recorded that the applicant:
“... sustained a significant injury to her left knee, as well as a soft tissue injury to her left shoulder following a workplace accident on 5th June 2018... she was getting off a bus at a school excursion... At the time due to her significant right knee symptomatology, [the applicant] was using a Canadian crutch on her left hand side to mobilise. As she attempted to get off the bus, the crutch on the left hand side of her body slipped on the embankment and [the applicant] lost her balance, falling forward and landing heavily on her left knee and left shoulder region.”[34]
[34] ARD, pages 75 – 77.
In relation to the incident on 29 April 2008, Dr Dias diagnosed that the applicant sustained a significant persistent aggravation of pre-existing right knee osteoarthritis, with an associated medial meniscal tear, secondary to an acute impaction injury.[35] Dr Dias noted that the applicant subsequently underwent three right knee arthroscopic procedures in June 2008, September 2010 and January 2014 prior to undergoing a right total knee replacement procedure in August 2014. He stated that the applicant “has continued so suffer from ongoing right knee pain, stiffness, discomfort and instability over the course of the past thirteen and half years since the index right knee injury of 29 April 2008”. Dr Dias assessed 28% total WPI as a result of the workplace injuries occurring on 29 April 2008, calculated on the basis of 27% right knee WPI and 1% skin WPI.[36]
[35] ARD, page 83.
[36] ARD, pages 86 – 87.
In relation to the incident on 5 June 2018, Dr Dias diagnosed that the applicant sustained persistent aggravation, secondary to an acute soft tissue injury, of pre-existing left knee osteoarthritis and “previous work-related injuries” including a left knee work injury on
5 March 2020 which had led to left knee arthroscopic surgery.[37] Dr Dias stated that “in my opinion 80% of [the applicant’s] symptomatology, disability and impairments with respect to her left knee relate to the workplace incident of 5th June 2018. 20% of [the applicant’s] symptomatology, disabilities and impairments with respect to her left knee relate to pre-existing degenerative changes affecting her left knee”.[38] Dr Dias noted that the applicant ultimately underwent a left total knee replacement procedure on 10 October 2019 as a result of her left knee injury. Dr Dias stated that the applicant has continued to suffer with ongoing left knee pain, stiffness, discomfort and instability since the left knee injury of 5 June 2018.Dr Dias also stated that the applicant suffers from a chronic left shoulder impingement syndrome, secondary to an acute rotator cuff tendon strain sustained as a result of the accident on 5 June 2018. Dr Dias assessed 29% total WPI as a result of workplace injuries occurring on 5 June 2018, calculated on the basis of 24% left knee WPI, 1% skin WPI and 5% left shoulder WPI.[39][37] ARD, page 84.
[38] ARD, page 85.
[39] ARD, page 87.
Dr Dias stated that “given that the subject accidents on 29th April 2008 and 5th June 2018 occurred during the course of [the applicant’s] employment...”, in his opinion, the applicant’s employment was the substantial contributing factor to the applicant’s right knee, left knee and shoulder injuries and the main contributing factor to the aggravation, acceleration and exacerbation of her pre-existing conditions affecting her right and left knees.
Dr Dias was not asked to, and did not, comment upon the inter-relationship between nor the consequentiality of the injuries on 29 April 2008 and 5 June 2018.
Dr Chris Harrington, orthopaedic surgeon
Dr Harrington provided an independent medical opinion, qualified by the respondent.
In a report dated 17 July 2018, Dr Harrington noted a history which included various injuries sustained by the applicant including in 2008, 2009 and 2015. Dr Harrington recorded that “The original injury to her right knee in 2008 caused ongoing problems. She also developed trouble with her left knee, which she attributes to over-use”.[40] Dr Harrington noted that the applicant underwent bilateral knee arthroscopies on 14 June 2013 and a right total knee replacement in 2014.[41]
[40] Reply, page 2.
[41] Reply, page 2.
In relation to the incident on 5 June 2018, Dr Harrington reported a history that “the applicant was onsite when she fell down an embankment and landed directly on her left knee. Since then she has been having a lot of knee pain...”. He noted that the applicant also injured her left shoulder on that occasion.[42] Dr Harrington concluded “I consider employment to be a substantial contributing factor to the aggravation injury on 5 June 2018 affecting both knees”.[43]
[42] Reply, page 3.
[43] Reply, page 5.
In a report dated 27 May 2019, Dr Harrington recorded a history that “To re-cap the history, [the applicant] suffered an injury to her right knee on 3 August 2008. She then developed left knee pain. Her treatment included arthroscopic surgery (bilateral) by Dr Hasn on 14 June 2013”.[44] Dr Harrington opined, “The current presentation is causally related to her work injury, over-use and aggravation injuries”.[45]
[44] Reply, page 9. See also a similar statement at Reply, page 10.
[45] Reply, page 12.
In a report dated 25 May 2022, Dr Harrington recorded:[46]
“To re-cap the history once again...
[the applicant]... injured her right knee at work on 3 August 2008... She then had a left knee injury at work in March 2010 and had an arthroscope of her left knee in September 2010. She then had arthroscopic surgery (bilateral) by Dr Jim Hasn on 14 June 2013...
She returned to work, even though her knees weren’t completely normal. Unfortunately, she had a fall about six months later, landing directly on her right knee. She had an arthroscope on 13 January 2014 followed by a right total knee replacement on 25 August 2014.
She then fell in a staffroom at work around the middle of 2018 injury her left knee...”
[46] Reply, page 16.
Dr Harrington assessed 33% total WPI, which was calculated on the basis of 18% WPI for the left knee and 18% WPI for the right knee.
Dr Thomas Davis, consultant surgeon
Dr Davis provided an independent medical opinion, qualified by the respondent.
In a report dated 11 June 2008, Dr Davis examined the applicant following her injury on
3 June 2008. Dr Davis recorded that the applicant “walked with an obvious limp and the aid of a walking stick”.[47][47] Reply, page 24.
SUBMISSIONS
The parties both made written submissions.
Respondent’s submissions
The respondent’s submissions may be summarised as follows:
(a) In relation to the claim and the issues in dispute, the respondent noted that the applicant has not formally made a claim in respect of any injury other than that occurring in frank incidents on 29 April 2008 and 5 June 2018. In particular, the respondent noted that the applicant has not made a claim under s 66 of the 1987 Act in respect of any injury occurring on 3 June 2008, 3 April 2009, 3 April 2015 or 3 August 2018 (which were dates particularised in the ARD). The respondent noted the provisions of ss 281, 282 and 289(3) of the 1998 Act and the directions issued by the Commission on 28 March 2023. On that basis, the respondent submitted that the applicant is not entitled to rely on any injuries other than those that were the subject of formal claims under s 66 of the 1987 Act. The respondent disputes that the Commission has jurisdiction to determine any other such injuries.
(b) The respondent confirmed that there is no dispute under s 4 of the 1987 Act that, in the course of her employment, the applicant injured her right knee on 29 April 2008 and that she injured her left knee and left shoulder on 5 June 2018.
(c) The respondent submitted that the sole issue is whether there is any relevant causal connection between those events. The respondent disputed that there is any relevant causal connection between the injuries sustained on 29 April 2008 and 5 June 2018. On that basis, the respondent submitted that any referral to a Medical Assessor must be in respect of separate and discrete injuries.
(d) The respondent submitted that resolving the issue involves an analysis of a common-sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang); 10 NSWCCR 796) and that the applicant is required to establish that the circumstances of the ‘injury’ on 5 June 2018 involved a material contribution from the injury on 29 April 2008 (Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49).
(e) The respondent referred to the applicant’s evidence and the various medical evidence in relation to the injuries. The respondent accepted that Dr Dias, and to an extent Dr Harrington, accept that the effects of the initial right knee injury on 29 April 2008 continued, subsequently leading to the applicant undergoing a knee replacement. However, the respondent submitted that there is little if any direct medical evidence addressing the use of a walking stick/crutch being used or required solely as a result of that injury. The respondent submitted that it was apparent that the applicant had, by June 2018, suffered multiple injuries including a number of injuries to her left knee and had undergone bilateral knee arthroscopies as at that date.
(f) The respondent did not concede that the evidence establishes that any use of a crutch or walking stick as of 5 June 2018 was a result of the injury on 29 April 2008, on the basis that various intervening injuries including injuries affecting the left knee and prior bilateral knee arthroscopies raise significant doubt as to the reason any walking stick was utilised. The respondent submitted that there is no direct medical evidence which addresses that aspect of the matter.
(g) The respondent submitted that the proximate and operative ‘cause’ of the injury on 5 June 2018 was the circumstances of the applicant’s employment, noting that that injury occurred in the course of employment when the applicant slipped when exiting a bus. The respondent submits that event is sufficient to satisfy the liability requirements under the 1987 Act, including injury in the course of employment and to which employment is a substantial or main contributing factor (as applicable) and that the enquiry may end there.
(h) The respondent submitted that, having regard to the evidence, plainly the left knee and left shoulder injury is separate and discrete to the right knee injury which occurred on 29 April 2008. On that basis, the respondent submitted, no aggregation pursuant to s 322 of the 1989 Act should occur.
(i) The respondent submitted that Dr Dias accepts only that the applicant was continuing to suffer pain and limitation in her right knee as a result of the injury on 29 April 2008 and that he did not specifically address the question of causation of the injury on 5 June 2008 or on what basis the injury suffered on that date is causally connected to the right knee injury on 29 April 2008. The respondent submitted that, indeed, Dr Dias supports the opposite conclusion because he addressed the question of causation discretely and independently in respect of the 29 April 2008 and 5 June 2018 incidents.
(j) The respondent submitted that the applicant has not discharged its onus to establish a causal connection between the injury on 29 April 2008 and the ‘injuries’ suffered on 5 June 2018.
(k) The respondent submitted that, accordingly, separate referrals to a Medical Assessor for assessment of the degree of permanent impairment should be made in respect of injury to the right knee on 29 April 2008 and in respect of injury to the left knee and left shoulder on 5 June 2018.
Applicant’s submissions
The applicant’s submissions may be summarised as follows:
(a) The case engages s 322 of the 1998 Act. In relation to “consequential loss”, the applicant relied upon the decisions of Moon v Conmah Pty Limited [2009] NSWWCCPD 134; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23, and Seif v Secretary, Department of Family and Community Services [2020] NSWCCPD 6.
(b) The applicant submitted that the 2008 injury set in train a series of events that are somewhat interlinked and are cumulative, in particular:
(i)the left knee injury occurred because of the need to use crutches post the right knee surgery and as the applicant stepped off the bus in 2018 there was a slight embankment and as she placed the crutch down to assist because of her ongoing right knee problems, the crutch slipped on the embankment causing her to lose her balance and fall;
(ii)the left knee injury occurred because the injury to the right knee and its progression with time resulted in a lack of support afforded by the right leg to the applicant;
(iii)the worse the right knee was, the greater the force needed through the stick. The support from the stick failed the applicant on 5 June 2018;
(iv)the injury to the right knee and the progression with time resulting in a lack of support afforded by the right leg and altered gait. These in turn led to overuse of the left leg and aggravated underlying degenerative changes, and
(v)the injury to the right knee and the progression with time resulting in a lack of support afforded by the right leg to the applicant, this together with a number of resulting falls (as pleaded), led inevitably to the fall on 5 June 2018.
(c) The applicant referred to the applicant’s evidence and the various medical evidence in relation to the injuries. The applicant submitted that Dr Harrington’s report dated 25 May 2022 was based on a reconstructed and incorrect history to the extent that it refers to a “left knee injury at work in March 2010”. The applicant submitted that, in any event, Dr Harrington assessed the right knee and the left knee together, apparently conceding consequentiality.
(d) The applicant submitted that the evidence demonstrates that, following the 2008 injury and surgery, the right leg was increasingly defective with time and aggravation. The greater the deterioration in the right leg, the greater the applicant needed to rely forcefully on the walking stick and she had a grave need to do so by 5 June 2018.
(e) The applicant submitted that the respondent’s reliance on no claim being made under s 66 of the 1987 Act in respect of any injury on 3 June 2008, 3 April 2009, 3 April 2015 or 3 August 2018 is fundamentally flawed because it assumes that those injuries were capable of sustaining a s 66 claim. The applicant submitted that no competent s 66 claim could or should have been made in respect of those injuries.
(f) The applicant submitted that, for all of those reasons, s 322 of the 1998 Act has been engaged.
(g) The applicant submitted that the respondent has not challenged the oral submission of counsel for the applicant to the effect that the Direction issued on 28 March 2023 ought more correctly record that the applicant will not submit that the injuries other than 29 April 2008 and/or 5 June 2018 are, relevantly to s 66, “the date of injury”.
(h) On that basis, the applicant seeks orders to the following effect:
“Refer Left and Right lower extremity to be assessed pursuant to s 322 of the 1998 Act with date of injury being 29 April 2008 with consequential injuries including workplace injuries on or about 3 June 2008, 3 April 2009, 3 April 2015, 3 August 2018 and 5 June 2018.”
Respondent’s submissions in reply
The respondent’s submissions in reply may be summarised as follows:
(a) The respondent submitted that the applicant carries the onus of proof in establishing that the condition in the left knee, resulting from the incident on
5 June 2018, “resulted from injury sustained by the worker in the course of her employment on 29 April 2008”. The question is ultimately one of medical causation. The evidence before the Commission is insufficient to establish any relevant causal connection. The applicant plainly suffered a significant number of right and left knee injuries over the intervening period which are not the subject of any specific pleading pursuant to the Direction of the Commission issued on
28 March 2023.(b) The respondent submitted that the applicant’s submission that the injury to the right knee resulted in a lack of support and altered gait, which in turn led to overuse of the left leg and aggravated underlying degenerative changes, runs contrary to the applicant’s earlier submission that the left knee condition resulted from the use of a crutch, and a fall on 5 June 2018. The claim as framed by the applicant is that she slipped on an embankment on 5 June 2018 resulting in injury to the left knee. That is the mechanism by which it is asserted the condition in the left knee is consequential to the right knee injury on 29 April 2008. However, the applicant now proffers an alternative mechanism, being long term altered gait. Those inconsistent allegations as to the cause of the left knee condition create obvious difficulty for the applicant in establishing the necessary causal connection.
(c) The respondent submitted that it is the applicant’s onus to establish that the left knee condition results from the pleaded injury on 29 April 2008. Dr Verheul’s opinion does not properly address that discrete question because it does not state with specificity which injury/ies are referred to when he noted that the worker’s condition ‘all goes back’ to the “original workplace injury in 2008 and 2009”. Further, Dr Verheul’s opinion that the problems in the left knee were a direct result of the right knee problems as a result of long-term antalgic gait, does not direct attention to the applicant’s primary claim – that the left knee condition arose when she fell on 5 June 2018, as a result of right knee injury on 29 April 2008.
(d) The respondent noted that the applicant conceded that Dr Dias was never asked to express an opinion on the interrelationship and consequentiality of the left and right leg injuries. The respondent submitted that the applicant’s own qualified expert, Dr Dias, has not provided any opinion supportive of the causal connection between the left knee condition and the right knee injury.
(e) The respondent submitted that the treating medical evidence does not support the applicant’s case. Firstly, the treating medical reports contain only vague references to the applicant’s right knee condition having its genesis in the incident in 2008. They do not adequately provide a factual basis or foundation for any positive finding that the left knee injury on 5 June 2018 was causally related to that injury. Secondly, the reports raise an entirely new mechanism of injury, being altered gait as being causative of the left knee condition. That allegation, now contained in the applicant’s submissions, is directly contrary to how the Commission framed the issue in dispute in the Directions, namely that the issue in dispute was “Whether the injury on 5 June 2018 is consequential to and can be aggregated with the injury on 29 April 2008...”.
(f) The respondent submitted that the applicant puts forward two conflicting versions as to how the left knee condition has arisen: the first, being the result of the use of a walking stick which slipped resulting in the applicant falling and injuring her left knee, and the second being altered gait as a result of the right knee injury leading to a left knee injury. Neither allegation is properly supported by any direct medical opinion and accordingly the claim should fail. There is no persuasive medical opinion supporting that the left knee condition is consequential to the right knee injury on 29 April 2008.
(g) The respondent submitted that the applicant’s case should proceed in accordance with the opinion of the applicant’s qualified expert, Dr Dias. That is, the applicant sustained an injury pursuant to s 4 of the 1987 Act to her right knee on 29 April 2008 and the applicant suffered a further injury pursuant to s 4 of the 1987 Act on 5 June 2018 affecting her left knee and left shoulder. Those injuries should be referred to the Medical Assessor separately and there should be no aggregation pursuant to s 322 of the 1998 Act.
FINDINGS AND REASONS
The law
Section 322 of the 1998 Act states:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note—
Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 322 of the 1998 Act was considered by the NSW Court of Appeal in Ozcan v Macarthur Disability Services Ltd.[48] The court accepted, in relation to s 322, that the “the question of whether another injury or an impairment ‘results from’ an injury is a question of fact (see Kooragang (at 463-4))”.[49]
[48] Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56, per Macfarlan JA, McCallum JA and Simpson AJA agreeing. Refer also to: State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570, at [15] – [25]; Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288; Elkhaligi v Lifestyle Solutions & Life Without Barriers [2020] NSWWCC 109.
[49] Ozcan v Macarthur Disability Services Ltd, 2021] NSWCA 56, per Macfarlan JA, McCallum JA and Simpson AJA agreeing, at [26].
The legal test of causation was set out by the Court of Appeal in Kooragang,[50] where Kirby P (as his Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[51]
[50] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[51] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[52] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[52] [2016] HCA 43, at [42].
It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act nor that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah,[53] Deputy President Roche stated at [45]-[46]:[54]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[53] [2009] NSWWCCPD 134.
[54] See also Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, at [61].2)
In Bouchmouni v Bakhos Matta t/as Western Red Services,[55] Roche DP stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[55] [2013] NSWWCCPD 4.
The Court of Appeal in Nguyen v Cosmopolitan Homes[56] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[56] [2008] NSWC 246.
The applicant bears the onus of proof.
Consideration
The relevant provisions of s 322
The respondent accepts that the applicant sustained injuries:
(a) on 29 April 2008, to her right knee, and
(b) on 5 June 2018, to her left knee and left shoulder.
The issue that I am required to determine is whether s 322 of the 1987 Act is engaged and whether relevant impairments can be assessed together to assess the degree of WPI of the applicant.
The applicant has not specified nor specifically addressed the particular subsection of s 322 upon which it relies. The respondent has also not addressed this issue.
It seems implicit from the applicant’s submissions that the applicant relies on the provisions of s 322(2) and/or s 322(3) of the 1987 Act. Those provisions appear to be most relevant to the circumstances of this case. For s 322(2) of the 1987 Act to be engaged, the impairments must “result from the same injury”. For s 322(3) of the 1987 Act to be engaged, the impairments must “result from more than one injury arising out of the same incident”.
In relation to s 322 of the 1998 Act, I accept that I am required to evaluate the causal chain and that a material contribution is necessary to satisfy the relevant test of causation.
The applicant bears the onus of proof.
The other consequential conditions claimed
As noted above, the ARD pleaded one date of injury, being 29 April 2008, and stated that the systems claimed were: right lower extremity, left lower extremity, left upper extremity and TEMSKI/scarring. The ARD described the injury as follows:
“On her way home from work the Applicant alighting from a bus and fell in a pot hole sustaining injury to her right knee together with consequential injuries on 3 June 2008, 3 April 2009, 3 April 2015, 5 June 2018 and 3 August 2018 to her left knee and left shoulder”.
On 14 March 2023, the respondent lodged a Reply to ARD (Reply), which relevantly stated:
“2. The respondent also notes that the claims for lump sum compensation under Section 66 WCA 1987 were made by way of letters (x 2) dated 12 November 2021. Those claims related only to injury suffered on 29 April 2008 and 5 June 2018. The respondent submits that they are the only injuries capable of referral to a medical assessor pursuant to the terms of the Workplace Injury Management and Workers Compensation Act 1998”.
At a preliminary conference on 28 March 2023, the parties were represented by their respective solicitors. As a result of submissions made at that conference, the Commission issued directions on 28 March 2023, which included the following statements:
“The Commission notes:
(i)The applicant relies only on the injuries on:
a.29 April 2008, and
a.5 June 2018.
(ii)The respondent accepts the injuries on:
b.29 April 2008, and
a.5 June 2018.
(iii)The matters in dispute are as follows:
c.whether the injury on 5 June 2018 is consequential to, and can be aggregated with, the injury on 29 April 2008, and
d.the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation... in respect of injuries on 29 April 2008 and 5 June 2018...”
The applicant’s submission in these proceedings now states that, in addition to the accepted injuries on 29 April 2008 and 5 June 2018, the applicant also relies on “consequential conditions” on 3 June 2008, 3 April 2009, 3 April 2015 and 3 August 2018 (which were particularised in the ARD).
The respondent noted that the applicant has not formally made a claim in respect of any injury or consequential condition other than that occurring in frank incidents on 29 April 2008 and 5 June 2018. In particular, the respondent noted that the applicant has not made a claim under s 66 of the 1987 Act in respect of any injury or consequential condition occurring on 3 June 2008, 3 April 2009, 3 April 2015 or 3 August 2018 (which were dates particularised in the ARD). The respondent submitted that, having regard to the provisions of ss 281, 282 and 289(3) of the 1998 Act and the directions issued by the Commission on 28 March 2023, the applicant is not entitled to rely on any injuries or consequential condition other than those that were the subject of formal claims under s 66 of the 1987 Act. The respondent submitted that the Commission has no jurisdiction to deal with those matters which were not the subject of formal claims.
In reply, the applicant submitted that the respondent’s reliance on no claim being made under s 66 of the 1987 Act in respect of any injury or consequential condition on
3 June 2008, 3 April 2009, 3 April 2015 or 3 August 2018 is fundamentally flawed because it assumes that they would have been capable of sustaining a s 66 claim. The applicant submitted that no competent s 66 claim could nor should have been made in respect of those injuries or consequential conditions. The applicant submitted that the respondent has not challenged the oral submission of counsel for the applicant to the effect that the Direction issued on 28 March 2023 ought more correctly record that the applicant will not submit that the injuries other than 29 April 2008 and/or 5 June 2018 are, relevantly to s 66, “the date of injury”.On that basis, the applicant seeks orders to the following effect:
“Refer Left and Right lower extremity to be assessed pursuant to s 322 of the 1998 Act with date of injury being 29 April 2008 with consequential injuries including workplace injuries on or about 3 June 2008, 3 April 2009, 3 April 2015, 3 August 2018 and 5 June 2018.”
I decline to make a referral such as is sought by the applicant because it is contrary to the agreement that was reached between the parties at the preliminary conference and recorded in the directions issued on 28 March 2023. I consider that it is in the interests of justice that I proceed on the basis of the agreement that was recorded in the directions issued on 28 March 2023.
However I note that, in any event, if I had been required to make a determination in relation to injuries or consequential conditions sustained on or about 3 April 2009, 3 April 2015 and 3 August 2018, I would have determined that the applicant did not discharge her onus of proof in that regard. In relation to the injuries or consequential conditions alleged to have been sustained on 3 April 2009, 3 April 2015 and 3 August 2018, there is no evidence of the applicant nor any medical evidence which specifically refers to injury on any of those dates. Whilst Dr Verheul generally accepted causal connection in respect of injuries in 2008 and 2009, he did not provide any specificity in relation to the injuries referred to. Given the lack of evidence in that regard, I could not be satisfied on the balance of probabilities that any such injuries or consequential conditions occurred, nor their causation.
If I had been required to make a determination in relation to the alleged consequential condition on 3 June 2008, I note that the applicant has given evidence in that regard. Dr Dias recorded a history that the injury on 3 June 2008 occurred due to right knee instability stemming from the injury on 29 April 2009. Dr Harrington did not deal with causation of that injury. Whilst Dr Verheul generally accepted causal connection in respect of injuries in 2008 and 2009, he did not provide any specificity in relation to the injuries referred to. Having regard to the evidence as a whole, it is likely that I would have been satisfied on the balance of probabilities that the applicant did sustain a consequential condition in her right knee on 3 June 2008, and further, that the injury on 29 April 2008 materially contributed to the injury on 3 June 2008 such that there was a causal relationship between those injuries.
However, for the reasons set out above, I do not make those findings.
Consideration of the evidence
The applicant’s injuries on 29 April 2008 and 5 June 2018 are accepted.
The applicant’s credibility has not been challenged and the factual matters set out in her statement are not in dispute.
The applicant’s evidence is largely consistent with the treating medical evidence and the history recorded by the IME’s, which is not in dispute.
On that basis, I accept that the factual background of the subject injuries is as follows:
(a) On 29 April 2008, the applicant injured her right knee, because it was twisted when she fell into a pothole as she was stepping off a bus. The applicant had ongoing problems and instability with her right knee following that injury.
(b) On 3 June 2008, the applicant sustained further injury to her right knee, her right wrist and tailbone when she slipped on a driveway and fell because of right knee instability. The applicant continued to have ongoing problems with her right knee.
(c) On 25 June 2008, the applicant underwent surgical arthroscopy to the right knee, performed by Dr Hasn, which found unstable Grade 11 flaps that were chondroplastied to a stable base.
(d) Following the surgery, the applicant continued to experience right knee pain, discomfort, locking, catching and giving way.
(e) On 30 April 2009, the applicant sustained a further aggravation to her right knee condition when her knee twisted and gave way as she went to rise from a chair at work, caused by ongoing right knee instability.
(f) On 14 May 2009, Dr Hasn noted that the applicant continued to experience right knee pain and instability and had episodes of her knee giving way and she found walking difficult. She used a walking stick to assist her to walk. Dr Hasn noted that the applicant was “uncomfortable walking without the assistance of a stick and finds walking difficult even with the stick”.
(g) On 20 May 2009, an MRI of the right knee showed areas of full thickness articular loss on the medial femoral condyle which had increased since arthroscopy a year ago which found unstable Grade 11 flaps that were chondroplastied to stable base. However, there was no evidence of any further frank injury in the nature of a new meniscal tear nor ligament damage.
(h) On 5 March 2010, the applicant sustained injury to her left knee when she slipped and fell at a school carnival due to ongoing instability of her right knee.
(i) On 20 July 2010, Dr Hasn noted that Synvisic injections had provided approximately three months of relief, however since early 2010 the applicant had been experiencing gradually increasing pain initially in her right knee and her left knee was also becoming increasingly problematic. Dr Hasn noted that clinically, primarily the medial compartments were irritable and tender and there are effusions in both knees. Range of motion was restricted in both knees due to pain. Dr Hasn noted that X-rays showed mild medial compartment narrowing, particularly on the right side.
(j) On 8 September 2010, Dr Hasn reported that both the applicant’s knees were still causing significant discomfort. He noted that “there has been a worsening of her left knee to the point where she is now on crutches”. He recommended repeat arthroscopy of the right knee and an arthroscopy of the left knee, which had not previously been undertaken.
(k) On 22 September 2010, the applicant underwent bilateral knee arthroscopic procedures performed by Dr Hasn.
(l) On 10 November 2010, Dr Hasn reported that, following the bilateral knee arthroscopy, the applicant was “still having difficulty on stairs” although her overall improvement allowed her to consider a return to duties a few hours at a time.
(m) The applicant continued to experience significant problems with her right knee and, since March 2010, mild left knee discomfort.
(n) On 25 March 2013, Dr Hood again referred the applicant to Dr Hasn for review of her “bilateral knee pain and swelling”.
(o) On 15 May 2013, Dr Hasn reported that the applicant’s “knees are giving her increasing problems, which are quite significant as they most trouble her on stairs”. He recommended further arthroscopic surgery to both knees.
(p) On 14 June 2013, the applicant underwent a bilateral knee arthroscopy, performed by Dr Hasn.
(q) On 23 July 2013, Dr Hasn reported that the applicant’s “right knee is giving her more problems in terms of feelings of instability and giving way”.
(r) On 24 September 2013, and again on 10 December 2013, Dr Hasn reported that the applicant’s left knee was progressing “reasonably well” but the applicant continued to have problems with her right knee which had not improved since the arthroscopy.
(s) On or about 14 January 2014, the applicant underwent a further right knee arthroscopy procedure performed by Dr Hasn, which resulted in a poor outcome.
(t) On 19 March 2014, Dr Hasn reported that the right knee arthroscopy surgery did not have a good response.
(u) On 30 April 2014, the applicant’s right knee condition worsened when she fell after her foot slipped and her knee gave way.
(v) On 27 May 2014 and 5 June 2014, Dr Hasn reported that the applicant continued to experience problems with her right knee.
(w) On 24 June 2014, Dr Hasn reported that the applicant’s right knee had become increasingly problematic and was giving way and causing her to collapse.
Dr Hasn recommended total right knee replacement surgery.(x) On 25 August 2014, the applicant underwent a total right knee replacement procedure performed by Dr Hasn.
(y) On 10 February 2015, Mr McKee, physiotherapist, reported that the applicant had pain and problems with her right knee.
(z) On 26 February 2015, Dr Hasn reported that the applicant had post-operative pain in her right knee.
(aa) On 13 May 2015, Dr Hasn noted that the applicant had slipped two weeks ago and twisted her knee, resulting in an increase in pain.
(bb) On 29 June 2017, Dr Hasn reported that a CT scan showed no evidence of periprosthetic lucency of the applicant’s right knee. He did not consider that further surgery was indicated.
(cc) Following that surgery, the applicant continued to have significant ongoing pain and problems with her right knee and mild intermittent left knee discomfort. The applicant was required to use one or two crutches to mobilise on an ongoing basis.
(dd) On 5 June 2018, the applicant sustained injury to her left knee and left shoulder when she lost her balance and fell as she stepped off a bus on a school excursion and the crutch that she was using slipped on a slight embankment.
(ee) On or about 3 August 2018, the applicant sustained injury to her right knee when she slipped on strawberries and fell at work because of ongoing instability of her right knee.
(ff) On 10 September 2018, Dr Love referred the applicant to Dr Richard Verheul, orthopaedic surgeon, for an opinion and management regarding her left knee. The referral noted that the applicant “re-injured her right knee at school on 3rd August 2018 where she slipped on some strawberries and twisted the knee”.
Dr Love stated that the applicant “is now using a 4 wheeled walker as both knees are painful”.(gg) On 10 October 2019, the applicant underwent a total left knee replacement, performed by Dr Verheul.
The applicant’s evidence is that injury to her right knee on 29 April 2008 caused subsequent ongoing pain, aggravation, instability and giving way of that knee on numerous occasions, and ultimately caused left knee and left shoulder consequential conditions which she sustained on 5 June 2018.
Turning to the medical evidence in relation to causation, Dr Verheul, a treating expert, opined that the applicant’s right knee and left knee problems “goes back to” the workplace injuries in 2008 and 2009. Dr Verheul opined that the applicant would not be in her current position if it were not for, in particular the workplace injuries in 2008 and 2009, and that those injuries had been a substantial contributing factor to the development of arthritis in her left knee. However, I note that Dr Verheul did not identify with specificity which injuries he referred to in that regard as he only generally referred to workplace injuries in 2008 and 2009. Dr Verheul also noted that an X-ray demonstrated severe osteoarthritis of the applicant’s left knee and he opined that the applicant’s left knee problems were a direct result of her right knee problems due to long term antalgic gait from favouring the leg. However, again Dr Verheul did not identify with specificity which injury caused the applicant’s long term antalgic gait, although it seems implicit that he was referring to workplace injuries in 2008 and 2009. Dr Verheul did not address, in specific terms, the causal connection between the injury on 29 April 2008 and the injury on 5 June 2018. However, Dr Verheul’s opinion certainly did not exclude a finding that such a causal connection exists and, whilst not explicit, may be read as supportive of such a finding.
Dr Dias accepted that the applicant continued to suffer from ongoing right knee pain, stiffness, discomfort and instability over a period of at least thirteen and a half years since the index right knee injury of 29 April 2008. Dr Dias recorded that the applicant had been using at least one crutch to mobilise after her right total knee replacement surgery on 25 August 2014. He noted that the applicant reported no left knee pain prior to the first injury of 29 April 2008, however the applicant experienced left knee symptoms after she sustained a left knee injury on 5 March 2010. He recorded that at the time of the significant left knee injury on 5 June 2018, the applicant was using a crutch to mobilise due to her significant right knee symptomatology. Dr Dias did not express any opinion (and nor was he asked) in relation to any causal connection between those injuries. Dr Dias assessed the injuries on
29 April 2008 and 5 June 2018 separately, which appears to indicate a premise that the injuries on 29 April 2009 and 5 June 2018 were causally unrelated.Dr Harrington’s opinion dated 27 May 2019 refers to injury to the applicant’s right knee on3 August 2008. This appears to be an incorrect history as the accepted date of injury was 29 April 2008 and there is no other evidence of injury on 3 August 2008. Dr Harrington accepted that injury to the applicant’s right knee in 2008 caused ongoing problems and resulted in the applicant undergoing knee replacement surgery. He noted the applicant’s long history. He recorded a history that the applicant had also developed problems with her left knee, which she attributed to over-use. Dr Harrington opined that the applicant’s left knee problems were causally related to her “work injury, over-use and aggravation injuries”. Whilst Dr Harrington opined that employment was a substantial contributing factor to the aggravation injury on 5 June 2018, he also did not express any opinion (and nor was he asked) specifically in relation to causal connection between the injury on 29 April 2008 and the injury on 5 June 2018. However, Dr Harrington assessed the left knee injury and the right knee injury together, which appears to indicate a premise that there was a causal connection between the two injuries.
I accept the respondent’s submission that the applicant has put forward two mechanisms of injury as to how the left knee and left shoulder conditions have arisen, both alleged to be causally related to the right knee injury of 29 April 2008: the first, being the result of the use of a walking crutch which slipped resulting in the applicant falling and injuring her left knee on 5 June 2018; and the second, being altered gait as a result of the right knee injury leading to a left knee injury.
However, I do not accept the respondent’s submission that those two mechanisms of injury are inconsistent. Further, I do not accept that they preclude a finding that the necessary causal connection exists.
I am satisfied on the evidence as a whole that the injury on 29 April 2008 caused the applicant significant ongoing pain, symptoms and disability in her right knee which included her right knee being unstable and giving way.
In relation to the alleged mechanism of injury being the applicant’s use of a crutch on 5 June 2016, there is no dispute that the injurious incident on 5 June 2018 occurred in circumstances where the applicant stepped off a bus onto a slight embankment and the crutch, that the applicant was using to support her, slipped on the embankment, causing her to lose her balance and fall.
The applicant’s evidence is that she was required to use at least one crutch to mobilise because of the pain, instability and giving way that she continued to experience in her right knee as a result of the injury on 29 April 2008. I accept that there is only limited medical evidence regarding the cause of the applicant’s use of a crutch on 5 June 2016, however the applicant’s use of one or more crutches due to knee pain and disability was acknowledged by Dr Hasn on 8 September 2010 and also in history recorded by Dr Dias. I note that the respondent did not concede that the evidence establishes that any use of a crutch or walking stick as of 5 June 2018 was a result of the injury on 29 April 2008, on the basis that various intervening injuries including injuries affecting the left knee and prior bilateral knee arthroscopies raise significant doubt as to the reason any walking stick was utilised.
Applying the common sense test to evaluate the causal chain, it seems to me to be a logical and most likely chain of events that the applicant’s right knee injury on 29 April 2008 did cause the applicant ongoing pain, instability and giving way of her right knee, such that it caused the applicant to fall on occasion and it necessitated the applicant’s reliance on the crutch on 5 June 2018 to provide support. Notwithstanding the limited medical evidence which specifically addresses this issue, having regard to the evidence as a whole I find the applicant’s evidence persuasive, and I am comfortably satisfied that the applicant’s ongoing right knee symptoms, caused by the injury on 29 April 2008 and having progressed and deteriorated over time, necessitated the applicant’s use of the crutch on 5 June 2018.
Further, applying the common sense test to evaluate the causal chain, it seems to me to be a logical and likely chain of events that the applicant’s reliance on the crutch on 5 June 2018, which slipped, materially contributed to the applicant’s fall on that occasion and a consequential condition to her left knee and left shoulder.
In relation to the alleged mechanism of injury being altered gait as a result of the right knee injury sustained on 29 April 2008, leading to left knee consequential condition, Dr Verheul noted that altered antalgic gaits precipitate osteoarthritis and in that regard he expressed confidence that the problems with the applicant’s left knee were a direct result of her right knee problems. Dr Verheul did not identify with specificity which injury caused the applicant’s long term antalgic gait, although it seems implicit that he was referring to workplace injuries in 2008 and 2009.
Considering the evidence as a whole and notwithstanding the limited medical evidence in that regard, I am satisfied that the injury to the applicant’s right knee on 29 April 2008 and the progression of that injury over time, resulted in a lack of support of the right leg and altered antalgic gait. The applicant experienced significant and debilitating right knee symptoms over an extended period of time, which also necessitated the use of mechanical aids such as one or more crutches. I accept that this, in turn, led to overuse of the applicant’s left leg and aggravated underlying degenerative changes. Again, applying the commonsense test to evaluate the causal chain, in the context of the history set out above, the development of such a consequential left knee condition seems to me to be a logical and likely result of an altered antalgic gait that the applicant was required to adopt due to the significant ongoing pain, instability and giving way of her right knee as a consequence of the injury on
29 April 2008.I do not regard such a mechanism of injury as inconsistent with, nor does it preclude, the injury to the applicant’s left knee on 5 June 2018 in the manner alleged by the applicant. It seems logical and not inconsistent with the evidence, that the applicant experienced both mechanisms of injury given the significant and long term symptoms and disability experienced by her as a result of the injury on 29 April 2008.
I accept that the respondent’s submissions do have some force and, further, I accept that there are some difficulties with the medical evidence, which I have set out above. However, notwithstanding that, for all of the reasons set out above, I consider that the evidence taken as a whole, does support a finding on the balance of probabilities that the injury on 29 April 2008 materially contributed to the injury on 5 June 2018 and the applicant’s left knee and left shoulder impairments, and that clear causal connection exists between those injuries and impairments. I am satisfied that the applicant sustained consequential conditions to her left knee and left shoulder on 5 June 2018 which resulted from the right knee injury which the applicant sustained on 29 April 2008.
On that basis, I am satisfied that the applicant has discharged its onus and that the provisions of ss 322(2) and 322(3) are engaged in relation to impairments from injuries sustained on 29 April 2008 and 5 June 2018.
Referral to Medical Assessor
Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the relevant injuries and consequential conditions, with a date of injury of 29 April 2008.
All of the materials admitted in the proceedings will be included in the referral.
SUMMARY
Accordingly, I make the following findings:
(a) the applicant sustained a right knee injury on 29 April 2008, and
(b) the applicant sustained consequential conditions to her left knee and left shoulder on 5 June 2018 which resulted from the right knee injury which the applicant sustained on 29 April 2008.
Accordingly, I order as follows:
(a) The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 29 April 2008 (with consequential conditions on 5 June 2018).
Body parts:right lower extremity (knee);
left lower extremity (knee);
left upper extremity (shoulder), and
TEMSKI/scarring.
Method:whole person impairment.
(b) The materials to be referred to the Medical Assessor are to include:
(i)the ARD and attachments, and
(ii)the Reply to ARD and attachments.
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